Public International Law

Lecture 4
Module 1
Territorial Sovereignty over Air Space

Development of aviation led to new problems in relation to a state over

its sovereignty
Prior to WW I - universal agreement among nations that the air space
over open seas and un-appropriated territory was absolute and free
Paris Convention 1919 Art 1
o Every state has complete and exclusive sovereignty over the
airspace above its territory and territorial waters
Paris Convention 1919

The Paris Convention of 1919 was the first international convention to

address the political difficulties and intricacies involved in international
aerial navigation.
Contained elaborate provisions for intl regulation of air navigation
Distinguished between
Scheduled intl airlines/air services
Aircrafts not belonging to such schedule/air service
USA did not ratify the convention but later signed the Havana
Convention 1928 which had similar provision followed by the Chicago
Conference in 1944

5 Freedoms of the Air

The Chicago Conference was centred around the 5 freedoms of the Air
1. Freedom to fly across foreign territory without landing
2. Freedom to land for non-traffic purposes
3. Freedom to disembark in a foreign country traffic originating
in the state of origin of the aircraft
4. Freedom to pick up in a foreign country traffic destined for
the state of origin of the aircraft
5. Freedom to carry traffic between two foreign countries
Chicago Conf also led to the creation of the ICAO which upholds these
freedoms
Other parts of Territory
National Waters
Rivers
Lakes & Land Locked Seas
Bays & Gulfs
National Waters

Areas covered with water also comes within the territory of a state.
Oppenheim divides these into
National waters lakes, canals, rivers, ports, harbours, bays, gulfs etc.
Foreign vessels have no right of passage
Territorial waters maritime belt , may include gulfs, straits etc
Foreign vessels have right of passage

Rivers
National Rivers within a state exclusively. Navigational rights
exclusive to the states
Boundary River separate two states
Non-national Rivers pass through several states
In both cases above the Navigational rights exists with the riparian
states
International rivers either separate or pass through several states
and are navigable from open seas. Navigational rights are based on
regional agreements
In 1966 the Helsinki Rules on use of water of Intl Rivers settled the
matter
Lakes & land-locked seas surrounding countries can exercise
sovereignty over their own respective zones of territorial waters
Bays & Gulfs area enclosed by land but have an opening from the
sea not more than 6 miles wide and are territorial in nature
Loss of Territory
Dereliction
Operation of nature
Subjugation or Prescription
Revolt
Servitude
Intl law recognises rights over territory which corresponds to
servitude or easements
It is a restriction imposed by treaty on the Territorial sovereignty of
a particular state whereby the territory of that state is put under a
condition or restriction serving the interest of another state, or nonstate entity
Starke
Eg. right of way maintenance or wireless stations, railways, military
bases etc

Types
Positive & Negative Servitude
Military & Economic Servitude

Intervention
Interference by a state usually dictatorial in nature in the affairs of
another state
In Nicaragua v USA (1986) ICJ pointed out that intervention is
prohibited
If it impinges on matters as to which each state is permitted to make
decisions by itself
If it involves interference in regard to this freedom by method of
coercion, especially force
Types
Internal Intervention state interfering with the disputing section of
the community in another state
External Intervention state intervening in the foreign affairs of
another state
Punitive intervention stronger nations acting against weaker
nations as a reprisal for some injury suffered or non fulfilment of
treaty obligation
Intervention when permissible
Collective intervention
Self-preservation
Balance of power
Humanitarian grounds
Enforcing treaty rights
Protection of person and property
Civil wars
Unlawful intervention
As a matter of right
Monroe Doctrine
The Monroe Doctrine was a US foreign policy regarding Latin
American countries in 1823.
It stated that further efforts by European nations to colonize land or
interfere with states in North or South America would be viewed as
acts of aggression, requiring U.S. intervention
James Monroe the fifth president of the United States (1817-1825) is
best known for establishing this foreign policy principle that came to
bear his name, the Monroe Doctrine.

Monroe Doctrine
In October 1823, President Monroe was concerned about Spain
reclaiming sovereignty in the Western Hemisphere.
He asked former presidents Jefferson and Madison for advice. They
told Monroe to join forces with Britain.
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However, Monroe's secretary of state, John Quincy Adams (who

would later succeed Monroe as president) thought that the US
should go it alone
Monroe followed Adams's advice and laid out an independent course
for the United States, declaring four major points in his December 2,
1823, address

Monroe Doctrine
1. The United States would not get involved in European affairs.
2. The United States would not interfere with existing European
colonies in the Western Hemisphere.
3. No other nation could form a new colony in the Western Hemisphere.
4. If a European nation tried to control or interfere with a nation in
the Western Hemisphere, the United States would view it as a
hostile act against this nation.

In his Monroe Doctrine, he said that the peoples of the West "are
henceforth not to be considered as subjects for future colonization
by any European powers
Monroe's declaration of policy toward Europe did not become known
as the Monroe Doctrine until about 30 years after it was proclaimed
In the early 1900s, the U.S. emerged as a world power and the
Monroe Doctrine became the foundation of U.S. foreign policy.

Drago Doctrine
President Theodore Roosevelt added the "Roosevelt Corollary" to the
Monroe Doctrine in 1904, which said
the U.S. had the exclusive right to intervene in the affairs of Latin
American countries that were actively involved in deliberate
misconduct or that refused to pay their international debts.
This was opposed by the foreign Secretary of Argentina Luis M
Drago . Use of force to collect debts, Luis Drago of Argentina wrote,
is wrong.
Drago believed that governments have no more right to invade or
attack other countries to collect money owed them than a private
citizen has the right to use force to collect debts
The principle has lost its importance now because the UN Charter
requires members to settle disputes peacefully

Types

of recognition contd from lecture 3

Implied Recognition
Conditional Recognition
Collective Recognition
Recognition of a head of a state or of a new government
Recognition De jure
Recognition De facto
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Recognition and retroaction

Recognition has to be retroactive
With a state, its prior act are also recognised
Civil Air Transport Inc v Central Air Transport Corpn (1953)
Insurgency & Belligerency
Public International Law
Lecture 5
Module 1
State Responsibility
State Responsibility
State Responsibility arises from breach of intl law
It is the responsibility arising from the wrongful act of a State
Can be an act or an omission
Satisfaction may be exacted through diplomatic negotiations
Other methods include
Formal apology
Pecuniary reparation
Compensation through intl arbitration
State Responsibility
Oppenheim classifies it into two kinds
Original responsibility borne by the State
Vicarious responsibility - acts other than their own
Nature of State Responsibility
Governed by intl standards
Law of State Responsibility is still evolving
Responsibility of federal state and protectorate
State Responsibility has to recognise the limits of intl law and
municipal law
In case of breach of intl law, the state is responsible,
regardless of the fact that no municipal law has been broken
Instances of State Responsibility
Breach of Treaty
Depends on precise terms and construction of the treaty
Chorzow Factory Case (1928) any breach of engagement
involves an obligation to make reparation
Breach of Contract
Breach of Contract may not result in liability under intl law
The concerned state has to break a duty extraneous to the contract
Eg. Denial of justice to the other party
Anglo-Iranian Case (1952)
Expropriation of Property
Was regarded as a basis of intl claim till the 19th C
Present day practice, doctrine and law tells that it is valid subject to
the following

For public purpose/interest

Not discriminated against aliens
Does not involve commission of any unjustified irregularities

Expropriation of Property
Justification/Defence
Prompt payment of adequate and effect compensation
The Calvo Clause
N.American dredging Case
El Oro Mining & Rly Co Case
Creeping expropriation
Debts
3 theories in relation to settlement of debts
Lord Palmerstons Theory
Drago Doctrine
Correspond to agreement theory
Intl Delinquencies
Every neglect of an intl duty constitutes intl delinquency
Injured state can resort to reprisals or even war
Breach of intl law but not a contractual obligation
State responsibility is based on notion of imputability
Imputability
Act of a state agent may be attributable to the state under intl law
Youmans Claim (US v Mexico)
Does not apply to the acts of private citizens
Special duty to protect diplomatic and consular staff
Damage inflicted to person or property of aliens in course of riots
may be imputed only in certain circumstances
Insurgency & belligerency imputation not possible until the new
govt. comes into power
Imputability
Imputability of state also extends to the officers of international
organisations like the UN
An act becomes imputable by subsequent ratification as well
Green Peace Case (1985)
State liability can be imputed for the injurious acts of the
Legislature, Judiciary and Executive
Claims
State is entitled to claim before an intl tribunal if one of its subjects
sustain unlawful injury for which another state is responsible
Nationality is the factor which provides the state with necessary
locus standi to make the claim on behalf of the individual
Barcelona Traction Case (1970)

Remedies
Reparation
Restitution
Indemnity/ satisfaction
Damages
Lost profits & interests
Vindictive damages
Other methods
Punishment of concerned officials
Apology
Formal acknowledgement of unlawful act
Corfu Channel case
Defences
Self-defence
UN Sanction
Reprisals
Force Majeure
Necessity
Acquiescence & Waiver
Public International Law
Lecture 6
Module 1
Territorial Jurisdiction
State Jurisdiction
o Exercise of jurisdiction
o Basically territorial in nature
o Varies from state to state
o Affected by history and geography
o Lotus Case (1927)
o There is no restriction on exercise of jurisdiction by any state unless
such restriction can be shown to exist as a principle of intl law.
Territorial Jurisdiction
Exercise of Jurisdiction by state over property, person, acts or events
within its territory clearly conceded by intl law.
For exercise of TJ, state territory would extend to
o A maritime coastal belt or territorial sea
o A ship bearing the flag of the state exercising jurisdiction and
Ports
Extend of Territorial Jurisdiction
o May extend beyond territory under certain circumstances. Based on the
following principles:
Subjective Territorial Principle
Objective Territorial Principle
Nationality Principle

Effect Doctrine
Passive Personality Principle
Protective Principle
Universal Principle

Subjective Territorial Principle

o States may claim jurisdiction over crimes that commenced within its
territory but completed in territory of another state
o E.g. Counterfeiting, drug trafficking, human trafficking etc.
Objective Territorial Principle
o States claim jurisdiction to prosecute the wrong doer when he enters
its domain
o Lotus Case (1927)
The rule of jurisdiction being territorial is not absolute
Under certain circumstances extra-territorial application
is approved
No need to show evidence of existence of intl law for
exercising jurisdiction
If the effect of a crime falls on a state then the state
has jurisdiction
Nationality Principle
Exercise of jurisdiction over the parent corporation by the state
where the subsidiary is located
Based on single enterprise theory
Applied by ECJ
Effect Doctrine
Jurisdiction is exercised extra-territorially on the basis of effect
however remote within the US
Adopted by American Federal Courts in anti-trust proceedings
Objected by UK & Australia
Passive Personality Principle
Aliens can be prosecuted by a state for acts abroad harmful to
nationals of that state
o Cutting Case (1887)
Protective Principle
Jurisdiction over acts abroad which affects the security of the state
Universal Principle
Universal jurisdiction applies in case of
o Piracy and
o War crimes
Comes under the jurisdiction of all states wherever it is committed
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Territorial Jurisdiction Over Aliens

o An alien cannot claim exemption unless
o He has some special immunity
o The local law is not in conformity with the international law
Special Immunity
o Gives rise to restriction of territorial jurisdiction
o Enjoyed by
o Foreign states and leaders of foreign states
o Diplomatic representatives and Consuls
o Public ships of Foreign States
o Armed forces of Foreign States
o International Institutions
Foreign States and Leaders of Foreign States
o One sovereign cannot exercise power over another
o States can sue each other in foreign courts provided the voluntarily
subject itself to its jurisdiction- Indirect liability
Diplomatic representatives and Consuls
o Diplomatic representatives
o Set out in the Vienna Convention 1961
o Enjoys absolute civil, criminal and administrative immunity
except under certain circumstances
o Diplomatic privilege does not import immunity from legal liability but
only exemption from local jurisdiction - Dickinson v Del Solar
Consuls
o Consuls are not diplomatic agents and, therefore, they are usually
amenable to civil lawsuits and criminal prosecution in the country
where they are assigned.
o Immunity is however extended to consuls from all suits and
proceedings in state courts. This prevents any embarrassment to
foreign nations that might ensue from such proceedings.
Public ships of Foreign States
o War ships and public ships of foreign states are exempt from TJ
o Private vessels chartered for public purpose is also deemed to be
public ship
o Proof of character of ship is decided by the ships flag and documents
Public Ships
o Theories of jurisdiction of Public ships
o Floating island theory
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o Implied exemption theory

Chung Chi Cheung v R (1939)
Commercial Ships
o No immunity from TJ even if it belongs to the government
o Instances
o Consequence of crimes extend to coastal states
o Crime disturbs the peace of the country
o Assistance of local authorities requested by Captain/
diplomatic agent
o Necessary for suppression of illicit traffic of drugs
Armed forces of Foreign States
o Limited immunity
o Depends on circumstances and absence and presence of express
agreements
o General principle is that the sending state has exclusive jurisdiction
over offences by the servicemen within the limits of their quarters or
while on duty
International Institutions
o UN and ILO has been conceded immunity from TJ under intl
agreements

Jurisdiction upon Aircrafts

o Jurisdiction
o Personal - state where the aircraft is registered
o Territorial jurisdiction of the state over whose air territory
the air craft is flying
Tokyo Convention 1963
o Object
o Punish offences committed aboard aircrafts
o Protection and disciplinary purpose
o States other than the state of registration cannot interfere with an
aircraft in flight to exercise criminal jurisdiction
o Subject to exceptions
To be continued.
Read Chapter 8
Public International Law
Lecture 7
Module 1

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State Succession
State Succession
Replacement of one state by another in responsibility for intl
relations of territory
Vienna Convention 1978
Passing of rights and obligations upon external changes of sovereignty
over territory - Starke
State A becomes incorporated into state B or divided between B, C and D
Treaty Rights & Obligations

Succession may refer to the transfer of rights, obligations, and

property from the predecessor state to the successor state.
Transfer can include overseas assets, participation in treaties,
membership in international organizations, and debts.
No general rule that all treaty rights may pass to the succeeding
state.
Guidelines laid down by the Vienna Convention 1978
State practices are full of inconsistencies

Treaty Rights & Obligations

When state becomes extinguished by loss of territory, no rights or
obligations of an executory character under treaty may pass
When state is not fully extinguished, passing of treaty rights and
obligation depends on the nature of the treaty
Art 15 Vienna Convention Moving treaty frontier rule
Treaty Rights & Obligations
Newly Independent States follow the Clean Slate Rule or the Free
Choice Doctrine -Art 16
Exceptions
o Treaties promoting general rules of intl law
o Convention on the High Seas
o Localised Treaties
o Boundary Treaties
o Multilateral Treaties
Non-fiscal Contractual Rights & Obligations
Claim for un-liquidated damages does not survive change in
sovereignty unless some element of quasi contract is involved
Vested or acquired rights ought to be respected by the successor
state
Successor state is entirely free to decide whether or not to become
subrogated to the contractual rights & duties of its predecessors
o West R & Central Gold Mining Co v King (1905)
Concessionary Rights

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Obligations under concession are terminated unless successor state

renews the concession
If only a part of the territory is transferred and the concession relates
to the remaining part of the territory the contract is enforceable
against the predecessor state
In case of termination of concession, the concessionaire is entitled to
compensation

Public Debts
No settled rules practice and doctrine reveal divergence
Rule of taking burdens with benefits
Successor state is liable for loans if the loans have been used or
visible benefits of the loans are associated with the territory that has
passed
No obligation to pay debts incurred for hostile purposes
Apportioning of debts in case of division of territory among more than
one state
Vienna Convention on Public Debts
Part IV
o Succession of state does not affect rights and obligations of
creditors
o Equitable proportion of debt to pass with territory
o Newly independent state is not liable for debts unless agreement
exists
o Apportioning of debts in case of division of territory among more
than one state
Private or Municipal Rights
No obligation to maintain former municipal law
Successor state can displace existing rights & titles
However must follow obligations under intl law
Claims in Tort
No general rule of succession of tort liability
Hawaiian Claims Case (1926)
o Successor state is not bound by un-liquidated claims for damages
in tort
o But once the claim becomes liquidated by agreement between
parties or through tribunal successor state is bound
Public Funds & Public property
General rule successor state takes over both
Vienna Convention 1983 Part II
o Art 11 - Successor state takes predecessor states property without
paying any compensation
o Includes both immovable property and movable property
connected to the territory
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Public Funds & Public property

Vienna Convention 1983 Part II
o Art 15 Newly Independent State takes over
o Immovable property within the passing territory of the
predecessor state
o Movable property connected to the activity of the passing
territory
State Archives
Vienna Convention 1983 Part III
Archives relating exclusively or principally to the territory passing will
pass to the successor state
Nationality
People will acquire nationality of the successor state and lost former
citizenship
In most cases it is recognised by treaty or agreement
Customary Rights Relating to Territory
Have to be respected in principle by the successor state
o Right of Passage over India Territory Case (1960)
Succession of Government
Passing of rights and obligations upon internal changes of sovereignty
irrespective of territorial change
Principle of Continuity applies
State continues to be bound by intl law and treaties
Succession of Government
When a govt. assumes office by unconstitutional means and
establishes de facto control during which obligations are incurred
towards other states
o It is not the responsibility of the displaced govt. to honour the
obligation on re-establishment.
Nationality

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